DOJ opposes injunction against CW final rule

Today’s scheduled hearing for a lawsuit that seeks to stop federal officials from implementing the CNMI-only Transitional Worker final rule will not push through after the district court granted the U.S. Department of Justice’s request for a two-week continuance.

At the same time, Theodore W, Atkinson, senior litigation counsel of DOJ’s Office of Immigration Litigation-District Court Section, told the court that he will represent the respondents in the case. He also cited that the complaint contains vague assertions of injury and unspecified violations of the law.

U.S. District Court for the NMI Chief Judge Ramona V. Manglona granted DOJ’s motion for continuance and moved the new preliminary injunction hearing to Nov. 22, 2011.

Manglona gave the petitioners until Nov. 10 to file their legal brief and allowed the respondents to submit their opposition brief by Nov. 16. The petitioners may file a reply brief by Nov. 18.

The petitioners are Bonifacio V. Sagana, Manuel T. Vilaga, Gerardo G. De Guzman, Hector T. Sevilla, Carlito J. Marquez, Eduardo M. Elenzano, and Jong Ho Lee.

They want the court to declare the implementation of the CW final rule as unlawful and exceeds the defendants’ constitutional and statutory authority.

Vilaga is a U.S. citizen, while Lee is a U.S. permanent resident. The other plaintiffs are long-term nonresident workers who mostly have U.S. citizen children.

The respondents in the case are Department of Homeland Security Secretary Janet Napolitano, U.S. Citizenship and Immigration Services District Director David Gulick, U.S. Labor Secretary Hilda L. Solis, and U.S. Department of Labor District Director Terrence Trotter.

In his motion for continuance, Atkinson said the U.S. government opposes the preliminary injunction, but that he needs more time to consult with his clients, analyze the allegations, fully apprise the court as to the bases for the U.S. government’s position, and to prepare for the hearing.

Atkinson said the DOJ’s Office of Immigration Litigation-District Court Section will be handling the lawsuit because of the similarity of issues with prior litigation in the U.S. District Court for the District of Columbia.

Atkinson was referring to Gov. Benigno R. Fitial’s lawsuit to block the federal takeover of the local immigration system. In November 2009, U.S. District Court for the District of Columbia Judge Paul L. Friedman upheld the constitutionality of the law that applied federal immigration laws to the CNMI.

Atkinson said the hearing on the issuance of a preliminary injunction reaches the U.S. government in a procedurally unusual way.

“There is no pending motion for a preliminary injunction, and thus no memorandum of points and authorities from plaintiffs explaining why they are entitled to preliminary injunctive relief. All the [U.S.] government has to work from is the complaint,” Atkinson said.

He said the complaint itself is vague and indefinite as to the bases for a preliminary injunction.

Atkinson said plaintiffs claim that the CW final rule “prejudices foreign workers and business owners due to the short period by which it was released and implemented,” but they cited no specific violation of the Administrative Procedure Act.

Atkinson said the allegation that the CW final rule “runs counter to the mandate of Congress for an orderly phasing-out of the nonresident contract worker program” does not specify how and what they deem as “confused” implementation of the final rule.

Atkinson said plaintiffs assert that the implementation of the final rule will cause them “grievous injury” and a deprivation of due process but they identify no concrete or particular injury they have suffered or will suffer, let alone irreparable injury.

What is clear, he said, is that the plaintiffs disagree with the implementation of the CW final rule and have serious qualms as to how it is being implemented.

“But what remains unclear is the legal underpinning for this action and the grounds for a preliminary injunction. Pro se litigants are entitled to substantial latitude with respect to how they negotiate the procedural shoals of federal district court litigation. They are not, however, entitled to substantial latitude with respect to their burdens in court,” he pointed out.